Semi-weekly south Kentuckian. [volume] (Hopkinsville, Ky.) 1883-1889, 1887-11-04

that it did not affect the accused pre-
ljudicislly. Upon the contrary it is
reasonably probable that it did and
the action of the trial court in this
respect was erroneous.
The third instruction given to tho
jury reads thus; ar tho Jury be-
lieve from the evidence that at the
time the accused, M. G. Radford, shot
and killed Henry ID. johnson, (if he
did 80 shoot and kill him), he The said
Radford not being himseV' the attack
ing party in said encounter, yet had
reasonable grounds to believe, and
did in good faith believe, his life was
then in danger, or that his person
was then in danger of great bodily
harm from violence thon about to bo
inflicted on him by said johnson,
then said Radford under his right OF
solf-defence had the right 10 use such
means as were within his power for
his own protection; and this right
may even extend TO taking the life Of
his adversary when the danger, real
or apparent, Is imminent, impending
provided, however, the one so taking
the life of his adversary has no other
safe means of avoiding such danger
and protecting his life or person-the
danger to ones person may be either
real or apparent"
This instruction is erronsouS in
two respects. The qualification
"he, the said Radford not being him
self the attacking party" was both
abstract and misleading. The jury
may have thought that the mere TAX
ing of the gun along by tho accused
amounted TO an attack upon the de-
ceased aud even if this were true,
yet the jury might possibly under
the evidence aud proper instructions
have believed that any intention to
use it upon johnson that may haYe |
existed in the mind of the accused
when he left his house, had been alb
by him before the deceased
advanced upon him and shot him.
The evidence does not disclose any
effort, however, upon the part of Rad
ford TO use the gun until johnson adj
vanced upon him. One was man
six feet high, weighing over l60
pounds, dangerous and determined
in the prime Of life, while the other
was crippled old man. Under this
state of the case on the record as pre-
sented, the word supra should not
have been inserted in the instruction.
There is testimony in tho record ten
ding TO support The claim that the
set was done in necessary self-de-
tense and this instruction only al
lowed the accused to act in his own
defense, provided there was no other
'afe means OF avoiding the danger.
The law does not limit this right.
Such restriction would be far from
'the perfection Of human reason"
It would require one believing and
having reasonable grounds TO believe
hat danger was apparant and i'm
pending to know whether he could
lvoid 1t savely otherwise than by IN
uring the adversary. The rule,
is that IL one believes and
las reasonable ground to believe,
hat the danger TO him Is immediate
md impending and that there Is no
)ther apparant and safe means to es-
,ape, that he may strike in his self
lsfense. Coffmann.Vs Comwlth., 10th,
Bush 495.
The fifth instruction given to the
ury correctly stated the relative
lights OF landlord and tenant; but
I was unnecessary TO so instruct them
n case, and calculated perhaps to
nislead them. For the reasons indi-
,ated, the judgement 10 reversed and
he cause remanded for new trial
consistent with this opinion. II
FENToE SIMS,
JOHN FELAND,
For Appellant.
p. w. HARDIN,
For Commonwealth.